Justice Committee backs Scottish defamation bill in principle

Posted on: October 14, 2020 by Claire Meadows

The Society of Editors (SoE) has cautiously welcomed support from the Scottish Parliament’s Justice Committee for defamation reform in Scotland.

Responding to the publication today of the Committee’s Stage 1 report on the Defamation and Malicious Publications (Scotland) Bill, the Society welcomed the committee’s backing for significant changes around defamation law in Scotland but warned that some aspects of the proposals still required amendment to ensure that the law reflects the modern day.

Members of the Committee have endorsed the bill at stage one but have asked for changes to be made in certain areas before the next stages of the bill take place over the coming months.

Ian Murray, Executive Director of the Society of Editors said: “The Society today welcomes the Justice Committee’s support for the overarching principles of defamation law reform in Scotland. This includes the introduction of a serious harm threshold, the exemption of secondary publishers from liability for defamation and various new defences that will hopefully ensure that the law in Scotland is brought more in line with defamation reform in England and Wales.”

In respect of the Derbyshire Principle, a long-established principle of common law in England and Wales that a public authority cannot sue for defamation, the Committee supported calls for the Principle to be placed on a statutory footing in Scottish law. The Committee called for greater clarity on which public bodies would be covered by the law and has asked for the redrafting of a section to make clearer whether private or charitable organisations delivering public services may sue for defamation if that part of their work is criticised. The Society has previously warned that, alongside a similar omission in the 2013 Act in England and Wales, the anomaly whereby private companies performing public functions are still able to use defamation legislation to silence criticism and stifle debate is “an ongoing threat to freedom of expression”.

Responding to the Committee’s report, the Society also expressed concern that it had called for the bill to be amended to reinforce the right of individuals to bring actions after more than one year.

Murray added: “The shortening of the limitation period for defamation actions to one year ensures that alongside the burden of proving serious harm, frivolous actions where individuals seek to complain down the line yet raised no issue at the time, do not waste the courts time.”

The Society responded to the Scottish government’s consultation earlier this year outlining how overdue proposals to reform Scottish defamation law would strike a better balance between freedom of expression and the protection of an individual’s reputation.

Proposals included in the Bill could see the introduction of important measures such as a new public interest defence, the introduction of a “serious harm” threshold, a single publication rule, new defences of fair comment and honest opinion, a stronger “offer of amends” system and the shortening of the period in which someone can bring an action after publication.

The Society’s response to the consultation can be found in full here